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Legal and Constitutional Affairs Legislation Committee - 01/05/2015 - Copyright Amendment (Online Infringement) Bill 2015

WILSON, Mr Timothy Robert, Human Rights Commissioner, Australian Human Rights Commission

[12:15]

CHAIR: Welcome. Thank you for attending today, Tim. I know that your life, like that of many of the witnesses, is very busy. Do you wish to make any amendments to the submission from the commission?

Mr Wilson : No significant amendments. I did come with a preparatory statement, Mr Chairman.

CHAIR: We will get to that. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. I remind the committee that the Senate has resolved that an officer of the Commonwealth or of a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution only prohibits questions that ask for opinions on matters of policy. It does not preclude questions that ask for explanations of policies or factual questions about when and how policies were adopted.

That really is a statement for us, Mr Wilson. I now invite you to make your opening statement. At the conclusion of your remarks, the committee will have an opportunity to ask you some questions.

Mr Wilson : Thank you very much for the invitation and for the opportunity to make an opening statement to the committee in relation to the Copyright Amendment (Online Infringement) Bill 2015. The commission is of course aware that the intention of the bill is to introduce a key reform to reduce online copyright infringement by providing for court injunctions facilitating carriage service providers to block foreign online locations that facilitate copyright infringement.

The commission is mindful that attempts to stop copyright infringement are consistent with advancing human rights. Property rights are human rights. Article 17 of the Universal Declaration of Human Rights explicitly states that. Article 27 specifically deals with issues around copyright and the right of authors to be able to get protection for their moral and economic endeavours. People have the right to own property, whether intellectual or physical property, and these rights should be preserved and protected.

However, the justifications to stop copyright infringement are, of course, not unlimited. Respecting intellectual property rights including copyright can unreasonably restrict freedom of expression without proper fair-use exceptions in copyright law or some other equivalent provision. Similarly, without a sufficiently high threshold to justify a court injunction, such a bill could quickly become a de facto internet filter.

The bill attempts to be prescriptive by establishing a test for courts to assess whether an injunction can be granted and setting out a number of factors that the court may take into account when applying this test. The factors informing this test include the flagrancy of the infringement or of its facilitation; whether disabling access to the online location is a proportionate response in the circumstances; the impact on any person likely to be affected by the grant of the injunction; and whether it is in the public interest to disable access to the online location.

While these factors ensure that there is a threshold to inform the granting of an injunction, they are not sufficient. Australia's copyright law in general is in need of serious reform, and I doubt that anybody really disputes that. While the Copyright Act contains a number of fair-dealing provisions for particular purposes, a key problem with Australia's copyright regime is the absence of a reasonable fair-use provision or some other form of expanded fair-dealing provision that accommodates both freedom of expression and the protection of property rights, particularly in the internet age, where technology is advancing substantially faster than the Copyright Act is able to meet. Under the regime proposed in the bill, there remains an outside risk that a website that carries content that would be covered by another country's fair-use exception may be blocked because of the absence of a sufficiently broad fair-use exception in Australian law or expanded fair-dealing provision in Australian law. I realise that that is an outside risk, but it nonetheless exists within the provision.

In response, the Australian Human Rights Commission recommends that we have an additional factor that assesses the extent of the infringement as a share of the total copyright of work—that is, if it is only 10 seconds of a two-hour movie—or, more importantly, the introduction of a fair-use exemption or new fair dealing exception in the existing Copyright Act. I say these things in the context that I do not believe the case that has been made for the introduction of the bill is necessarily sufficient. There has been an argument—and I take copyright infringement as a very serious issue—but whether this will actually successfully achieve the outcome remains a point of contention, not least because, as has been highlighted already, the application of technological innovation is probably going to outdo it. That is a general remark.

CHAIR: Thank you for that.

Senator JACINTA COLLINS: In the absence of dealing with the fair-use exemption issue, at least in this bill, in the way you have suggested, and now that you have raised the further issue about whether it is likely to be successful in its effect, I am unclear as to whether you are supporting that the bill should proceed or not.

Mr Wilson : I am not taking a position directly on whether the bill should proceed or not, but I am ambiguous about whether it will meet its objective. The previous witnesses raised concerns about whether they thought it would be effective and whether it was too strong a provision. I do not feel I am sufficiently expert in the technological dimensions to give a thorough opinion, but I would say that I am not convinced that the case has been made, while acknowledging that there is a serious issue around online infringement, where people download volumes of information and copyrighted works that are protected and are not paying sufficient royalties, and recognising both the moral and the economic rights of rights holders and that that does need to be addressed.

Senator JACINTA COLLINS: Sure. In terms of the case having been made—I was interested in the previous session—people who were quite concerned about the bill in its current form were reasonably optimistic that it could work. Our job as a committee is to try to identify the factors that could make it work to meet, as you have suggested, human rights in relation to copyright. You have suggested that we look at a way of representing fair use, at least in this bill. You have suggested the 10 seconds of a two-hour movie.

Mr Wilson : I use that as an example. It was not a particularly prescriptive example, because of course there is lots of different content that is downloaded. A provision does not really exist in copyright law which gives recognition to the fact that there are different laws in different jurisdictions. We are of course talking about the internet. There could be a website, for instance, that sits overseas which contains, say, clips of 10 seconds, 20 seconds or 30 seconds of a two-hour film, which may be covered under their fair-use provision which might be accessed from Australia and therefore may not necessarily be covered under the existing four other provisions.

Senator JACINTA COLLINS: I just wonder whether there are not more effective ways to do that, even if we are limiting our consideration to a fair-use exemption in this particular bill. Could you give some thought to that rather than just identifying that it might be a portion of a larger thing or whether we do, in fact, refer to courts taking into account whether a fair-use exception is granted elsewhere, or there may be another way to capture that point specifically?

Mr Wilson : I would have to take that question on notice and have a think about it. While I understand the question, whether a court could then recognise a law, another jurisdiction's interpretation of an Australian court, might raise a number of issues. I understand this bill sits in isolation and that it would be backed up with broader reform around copyright laws to modernise and make them relevant and effective, and that would largely cover most of the issues. In the absence of that, we have recommended the additional factor—to recognise that we should not face a scenario where somebody who accesses a particular site ends up finding themselves foul of Australian law, as, to be quite frank, often occurs when people access copyrighted material in Australia through various platform shifting et cetera, and when there is no commercial benefit and it just happens to be a quirk of cross-jurisdictional access.

Senator JACINTA COLLINS: Can you take that on notice, because I think the share of time, so to speak, cannot be the only way that would accommodate a fair use issue. Secondly, the Attorney is talking about a root and branch review, but the evidence we are hearing is that people are quite frustrated that there has been quite a lot of time and energy put into both the fair use issue and the safe haven issue. One of the witnesses indicated in her submission that we are becoming an international embarrassment on that issue. Are you aware of the government outlining its position as to why we have not progressed those matters?

Mr Wilson : I have not seen any explicit statement from the government about why those matters are not being progressed. Of course, I am aware of the fact the Australian Law Reform Commission has made a significant review into those matters. My hope would be that the government would deal with this issue of lease, because technologically it is simply outpacing the practical use of the law. As somebody who is both concerned from a human rights perspective about free speech and the preservation and protection of property rights, the failure to deal with modernising the copyright act, particularly in this space, undermines the potential to deal with the accommodations of both. You would have to direct anything else, no doubt, to the government.

CHAIR: One of the previous witnesses indicated that they believe that an overseas entity affected by an order of the Federal Court could not seek any relief to the injunctive order here in Australia. Is that your understanding of the impact of this legislation?

Mr Wilson : It is another question I will have to take on notice. Not being a lawyer, I would have to go and look at that.

CHAIR: You would find that unusual, I imagine, and a breach of international human rights to be able to appeal a judicial order that impacts on the economy of your business, or—

Mr Wilson : I need to clarify: are you suggesting a foreign carriage service provider can take action, or are you suggesting the—

CHAIR: No, I was suggesting that someone who believes that a copyright has been infringed can go before the Federal Court and get an injunction order that shuts down these 100 websites, 99 of which were unintended to be shut down, because of the order of the Federal Court on, I imagine, a corporation here in Australia that has the capacity to block that. Yet the entity impacted by that, the overseas entity, has no right to judicial relief here in Australia, according to the advice of a former witness. I have expressed that I find that an extraordinary position.

Mr Wilson : I find it surprising, Senator, but I am not going to give a concrete opinion about it. I would have to take it on notice to clarify that, because I would have thought that you would have had the flexibility to do so under Australian law, even if you operate in another jurisdiction.

CHAIR: Sure. That exists for almost all other aspects of law, and I imagine it would be here.

Mr Wilson : Yes. That is why I am perplexed by the question.

CHAIR: Perhaps going a little bit outside of this fair use issue—I understand the argument and I understand the principle of the argument, but how does one strike a balance between a person's property rights and a fair use issue? Can you give me an example? It is not space that I have spent a lot of time in.

Mr Wilson : There are varying different views about how you would strike the balance in a fair use provision. I would perhaps recommend the Chair towards the ALRC report, which goes through the principles that would be necessary to establish a fair use provision, but does not then go into a prescriptive basis. In the end that is essentially a matter for public policy, but I think that there can be reasonable access to content without it being used for a commercial purpose as a share of the overall content, which varies depending on the type of content or creative work or authored work we are talking about. That is ordinarily how it is achieved. We have provisions in existing laws which deal with certain numbers of bars in songs; if you use more than, I think, eight, you suddenly are infringing on somebody's copyright, but anything less than that is essentially fairly dealt with or accessed.

Those issues are fundamentally about public policy. I think the bigger challenge is an age where technology is moving so rapidly and quickly and where legislation can continue to be the best mechanism to establish where that tension or relationship is between legitimate access and respecting a creator's works and fair use. Parliamentary processes are, rightly, long—that is a fundamentally good thing—to make sure that there is certainty in the law and whether there needs to be a degree of flexibility where a broader set of principles not dissimilar to the objective of this bill is established. Courts can then interpret and establish through the common law a principle about where the tension can be met between respecting property rights and free speech or any other policy objective the government sets out through the law.

CHAIR: Thank you for that. I know that you have talked about the very cursory 10 seconds. I get that. If one were to broaden just that little example—it requires a lot of work of its own to think through what some of the tests or guidelines might be—wouldn't one also give weight to the content of the release? For example, if my copyright were where over a season I had some international treasure hunt that would eventually, if you kept buying the segments and getting the clues, you could get yourself ready to go find a treasure box with $1 million in it somewhere, ten seconds of the final episode is enough to tell you where it is.

Mr Wilson : It is an intriguing example.

CHAIR: The question would be about the application of these tests—whether it would be a time test. Wouldn't one have to consider the weight? One of the struggles has been whether a substantial effects test is a better way to go than a test of primary content. If one goes to a substantial effect test, wouldn't it be the case that we would need to start to consider these little sub-elements of that?

Mr Wilson : I think that is a fascinating question and I think the answer broadly would be yes, which is why it is perhaps best to do it through a position of establishing clear principles and then giving a court or other agency the flexibility to interpret those based on the type of content. We are seeing an increasing amount of content that does not just exist across one platform either. I do not just mean that you can access something from you iPad or you can access something from other types of technology; it is that there is an interrelationship between different types of content which may be linked or accessed. DVDs, for example, have had this for a long period of time; there is the primary product, but then it has certain bits of content which you may access from other points. So you have to make a judgement call on that based on the type of content. But I think that, if you approach it from a position of principles and then leave it to a court in the hope that they would quickly recognise and establish precedents that others could draw from, you would be able to recognise those challenges. We do not know what type of content is going to be created into the future and, for an act to uphold the principles of copyright and respect property rights, it does need to be flexible in that environment.

CHAIR: We have concentrated a lot today on how copyright relates in the entertainment industry, but I imagine it has a much broader spectrum; if I design house plans, I have intellectual input into that and I would have copyright on it. If someone went to distribute them, this bill would provide relief for me to be able to get an injunction. That observation leads me to my question: what would happen in a WikiLeaks situation here? Would this bill be enlivened to stop people who were releasing the content of that to be taken down?

Mr Wilson : Do you mean would it be able to be used to block access to WikiLeaks?

CHAIR: I have used WikiLeaks just to promote your mind towards the subject area. Say you have a whistleblower. Let's assume for a moment that the documents that the whistleblower is going to publish on the internet are a matter of national interest to all people in Australia. Could this legislation not be enlivened to take that down?

Mr Wilson : It cannot be used to take it down, but you can use a carriage—

CHAIR: Blocked.

Mr Wilson : Yes, to block access. Under the current provisions, if it were a WikiLeaks type site on creative or authored works that were privately held versus government—I am not sure it would necessarily achieve it in terms of government documents. In terms of private documents, I think that is basically what the intention of this bill is.

CHAIR: Would the public interest test overcome that? The courts could say: 'I accept that this is a document released by Fred, who is the author of it, and he certainly has the rights over it, but it's in the nation's interest to know that Fred's writing to the President of Lilliput.' I am isolating this from national security issues.

Mr Wilson : Right—we are only talking about private creative works. Then would it be able to be used? I would have to go through the test. These are decisions the court would have to make, but I would have thought that, if you have a collation, the intention of this bill is to stop carriage service providers accessing a purpose in a site which is essentially solely for hosting—

CHAIR: I am now at substantial effects. Put that aside because in those circumstances I agree. Disregard what tests might apply. Let's just pretend that the test that eventually becomes published with the legislation could trap a private document released on the internet that it is in the national interest to be released, for us all to know about and to know what the content is. The author wants it blocked. How do we make provision in those unique circumstances—and I am thinking the public interest test is the one that might come alive for us. Wouldn't it be important for the bill at least to be able in those circumstances to say, notwithstanding everything else—everything is proven here; it is his or her work and they have copyright over it—in these circumstances the content of it is such that it is in the national interest for it to be published?

Mr Wilson : You have to define national interest.

CHAIR: Let me go another way. I have just thought of one. I have taken 100 hours of videos of the torture of monkeys as I am practising on them to get some lipstick approved to get out into the public. It is mine. My company bought the video equipment. They are my monkeys, my facility, my lab. Someone now puts that up on the internet. Personally I think it is of great interest to the nation to see that so they can work out whether they want this sort of behaviour to be tolerated. But isn't it true that that corporation could enliven this bill—leave it as it is and pretend the site was put up specifically to publish that video alone, then this legislation could cause that to be blocked.

Mr Wright : I would have thought then that the court would have to look at it and make an assessment against whether it did meet the standard. I would have thought that the public interest would have said that it probably should be released, at least because it is not really being produced for a commercial purpose.

CHAIR: That is the burden of my question. Having looked at the legislation, in those circumstances do you think the public interest test would be sufficient—maybe?

Mr Wilson : That would be my assumption, yes.

CHAIR: Thank you for your evidence.

Proceedin gs suspended from 12:40 to 13:31